STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE )

)

Petitioner, )

)

vs. ) CASE NO. 94-6058

)

MICHAEL V. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in Naples, Florida, on January 11, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Richard R. Whidden, Jr.

Assistant General Counsel Department of State

The Capitol, MS 4

Tallahassee, Florida 32399-0250

For Respondent: Michael V. Jones, pro se

344 Benson St.

Naples, Florida 33962 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of misconduct in regulated activities.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 21, 1994, Petitioner alleged that Respondent holds a Class DI Security Officer Instructor License.

Petitioner alleged that Respondent committed misconduct in the performance of regulated activities in April 1994 by failing to provide three named students the required hours of instruction at a security officer school or training facility.

By Election of Rights filed October 19, 1994, Respondent demanded a formal hearing.

At the hearing, Petitioner called one witness and offered into evidence one exhibit, which was admitted. Respondent called one witness and offered no exhibits into evidence.

No transcript was ordered. All of Petitioner's proposed findings of fact are adopted or adopted in substance.

FINDINGS OF FACT

1. Respondent holds a Class DI Security Officer Instructor License, number DI89-00375

   
   

2. In May or June of 1994, Respondent taught a security officer course in Naples. The course was intended to qualify students for a Class D security officer license. Three students enrolled in the course.

   
   

3. Respondent taught the entire course on two consecutive nights. Instruction on the first night ran from 5:00 pm to 9:00 pm. Instruction on the second night ran from 5:00 pm to 10:00 pm, with the last two hours devoted to the security officer examination.

   
   

4. Respondent administered a final examination to the students, which they all passed.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

   
   

6. Rule 1C-3.140(1)(a) identifies nine areas of instruction and a total of

   20 hours of instruction and requires that:

   
   

   A security officer school or training facility shall teach, at a minimum, and the students shall attend the following subject areas for the indicated time[.] . . . Each hour shall consist of 50 minutes of instruction.

   
   

7. After adjusting for the allowance of only 50 minutes of instruction for each hour of required course work, the total classwork required under the rule is 1000 minutes or 16.7 hours.

   
   

8. Rule 1C-3.140(1)(b) requires a final examination "[u]pon completion of the required curriculum." In other words, testing time does not qualify as instructional time. Even if the examination were counted as class instruction, Respondent taught only seven hours, or less than half of the required time.

   
   

9. Section 493.6118(1)(f) provides that discipline may be imposed upon any licensee who is guilty of "fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of activities regulated under this chapter."

   
   

10. Rule 1C-3.113(1)(e)4 states that Petitioner shall impose a fine of

    $1000 upon a licensed firearms instructor who commits "misconduct in the practice of regulated activities" by "falsely certif[ying] the completion of required training.

    
    

11. Rule 1C-3.113(2) permits a deviation by 50 percent in the penalty for aggravating or mitigating circumstances. There were only three students in the class. They all passed the final examination. The offense did not pose a

danger to the public. And Respondent has not previously been disciplined. The mitigating factors compel the reduction of the penalty to $500.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of State enter a final order imposing an administrative fine of $500 against Respondent.

ENTERED on January 24, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on January 24, 1995.

COPIES FURNISHED:

Hon. Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, FL 32399-0250

Office of the General Counsel Department of State

The Capitol, PL-02 Tallahassee, FL 32399-0250

Richard R. Whidden, Jr. Assistant General Counsel Department of State

The Capitol, MS 4 Tallahassee, FL 32399-0250

Michael V. Jones, pro se

344 Benson St.

Naples, FL 33962

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

vs. CASE NO. C94-01092

DI89-00375

MICHAEL V. JONES, DOAH CASE NO. 94-6058

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on January 11, 1995, before Robert E. Meale, a duly assigned Hearing Officer of the Division of Administrative Hearings. The Recommended Order was submitted by the Hearing Officer on January 24, 1995, a copy of which is attached. Petitioner timely filed exceptions.

RULINGS ON EXCEPTIONS FILED BY PETITIONER

1. Petitioner takes exception to the Hearing Officer's failure to include a finding of fact in the Recommended Order finding that Mr. Robert Swain was not issued a certificate by the "DI" school to show he had completed the course due to Respondent's failure to properly teach the required material. Yet, the Recommended Order stated in the preliminary statement that "(a)ll of Petitioner's proposed findings of fact are adopted or adopted in substance". Nowhere else in the Recommended Order is Petitioner's proposed finding of fact Number 10, which proposed this finding, rejected. This exception is accepted as it appears from a review of the entire record in this matter that this fact was found by the Hearing Officer although it was inadvertently not label led as a Finding of Fact.

2. Petitioner also excepts to the Hearing Officers Conclusion of Law Number II which fails to recognize the fact that Mr. Swain did not receive a certificate due to Respondent's failure to properly teach the required material as an aggravating factor. This exception must be accepted. The fact that Mr. Swain was injured as a result of Respondent's actions cannot be ignored and should be found to be an aggravating factor to be weighed in imposing discipline against Respondent as a matter of law.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order with the addition of the finding of fact addressed in paragraph 1 of the Ruling on Exceptions above.

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates herein by reference the Conclusions of Law in the Recommended Order with the exception of Conclusions of Law Number 11 which is amended to recognize the addition of an aggravating factor to be weighed in imposing discipline against Respondent's license and to find that the Respondent's offense was injurious to the public.

Based on the Foregoing, it is ORDERED that Respondent pay an administrative fine in the amount of $1,000.00, by cashier's check or money order to the Department of State, Division of Licensing within thirty (30) days. Failure to make timely payment shall result in the automatic suspension of any licenses issued to Respondent or the denial of any licenses applied for pursuant to Section 493, Florida Statutes.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station #4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeal, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 29th day of March, 1995.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail this 29th day of March 1995, to Michael V. Jones, pro se, 344 Benson Street, Naples, Florida 33962.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

(904) 488-3492

Copies Furnished to: Filed with Agency Clerk

License File Division of Administrative Hearings Tampa Regional Office

MG/cf

Docket for Case No: 94-006058

Orders for Case No: 94-006058